Citation Nr: 20009833 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 18-12 239 DATE: February 6, 2020 REMANDED Entitlement to service connection for tinnitus is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1955 to September 1957. The Veteran appeals a November 2017 Rating Decision (RD) by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in November 2018. A transcript is of record. The Veteran stated he currently has tinnitus, was exposed to loud noise in service, and that he has been dealing with tinnitus for a long time. See November 2018 Board Hearing Tr. at 3-4, 6. Because tinnitus is a condition capable of lay observation, the Veteran is competent to testify as to his observed symptoms and the actual existence of the condition. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the Veteran’s assertions are credible as to the existence of tinnitus. The November 2017 VA examiner found the Veteran did not have tinnitus and therefore did not render a nexus opinion. The February 2018 VA opinions similarly noted “there is no current diagnosis of tinnitus” and speculated the Veteran’s tinnitus “began since 2017.” As stated above, the Veteran is competent to testify to the existence of tinnitus. The previous VA opinions and VA examination were premised on the fact the Veteran did not have tinnitus. An opinion based on an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 458, 460 (1993). Furthermore, the February 2018 VA opinions based their negative nexus opinions on no report of tinnitus in the medical evidence. As a result, the February 2018 VA opinions relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board notes the Veteran is also service connected for bilateral hearing loss (BHL). See November 2017 Rating Codesheet. Since BHL and tinnitus may both deal with the similar anatomy of the ear, secondary service connection should be addressed as well. As such, remand is required for an etiology opinion that accepts as true the Veteran has tinnitus and accounts for his lay statements. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his tinnitus that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Thereafter, obtain an opinion from a qualified clinician to determine the nature and etiology of the Veteran’s tinnitus. The evidentiary record, including a copy of this remand, must be made available to and be reviewed by the reviewing clinician. It is up to the discretion of the reviewing clinician as to whether a new examination is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary, the reviewing clinician is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s tinnitus was incurred in, or otherwise related to, his time on active service, to include his conceded noise exposure during service? Is it at least as likely as not that the Veteran’s tinnitus was CAUSED by his service-connected BHL? Is it at least as likely as not that the Veteran’s tinnitus was AGGRAVATED by his service-connected BHL? For the purposes of this opinion, the reviewing clinician is to assume and accept as true that the Veteran has tinnitus. In rendering this opinion, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The reviewing clinician is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After the above development has been completed, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.